About Those "Errors" In Your Kagan Testimony, Sen. Sessions...

August 03, 2010 3:40 pm ET

In his floor speech this morning opposing Solicitor General Elena Kagan's nomination to the Supreme Court, Sen. Jeff Sessions (R-AL) "ask[ed] and challenge[d]" Kagan supporters "to point out any errors in my remarks as we go forth so that we can, above all, get the facts straight." He then launched into an account of Harvard Law's policy toward military recruiters during Kagan's tenure as dean which contained errors of fact. We submit to Sen. Sessions' attention that then-Dean Kagan did not in fact bar recruiters from the campus (as he twice said she did this morning), and that his insistence that anti-gay discrimination in the armed forces is a matter of law and not military policy is misleading at best.

Sen. Jeff Sessions:
Prohibition On Military Service For Homosexuals Is An Act Of Congress, Not A
Military Policy

SEN. SESSIONS: Madam President, the United States
military did not have a policy called "Don't Ask, Don't Tell." That was a law
passed by the US Congress and signed by president Clinton and it was the law of
the land. And it was not their choice. They followed, saluted, and did their duty....
She didn't seem to complain about the policy when she worked for President
Clinton, who signed the law. But she punished the men and women who were
preparing to serve and defend our country and Harvard's freedom to carry on
whatever these silly activities they wanted to carry on. This was not a
little-bitty matter.

Military Policy Has Denied Homosexuals The Right To Serve
Throughout American History

Throughout
our history, U.S.
military policy has been to expel gay soldiers as soon as their sexuality is
identified — or to bar them from serving entirely if their sexuality can be
identified ahead of time. While Sen.
Sessions is correct insofar as the policy called "Don't Ask, Don't Tell" was
created by Congress, his statement implies that discrimination against
homosexuals in the armed forces originated with Congress and President Clinton.
That is wildly misleading.

The Continental Army
Expelled A Soldier For "Homosexual Acts" In 1778. According to Human Rights Watch:
"The first known case of a soldier being discharged from the U.S. military
for homosexual acts took place in February 1778: Lt. Gotthold Frederick
Enslin was court-martialed after being discovered in bed with another soldier,
and he was expelled from the Continental Army by order of Gen.
Washington." [HRW.org, accessed 5/16/10]

Military Recruiting Policy
Was Revised During World War II To Allow Rejection Of Recruits Based On
Psychiatrist's Determination Of Sexual Preference. According to University of California
at Davis professor Gregory Herek: "As the United States prepared for World
War II, psychiatric screening became a part of the induction process and
psychiatry's view of homosexuality as an indicator of psychopathology was
introduced into the military. Instead of retaining its previous focus on
homosexual behavior, which was classified as a criminal offense,
the military shifted to eliminating homosexual persons, based on
a medical rationale. In 1942, revised army mobilization regulations included
for the first time a paragraph defining both the homosexual and 'normal' person
and clarifying procedures for rejecting gay draftees."
[Psychology.UCDavis.edu, accessed 5/16/10, emphasis original]

1981: Defense Department
Codified Prohibition On Gays In The Military. According to UCD professor Gregory
Herek: "In 1981, the DOD formulated a new policy which stated
unequivocally that homosexuality is incompatible with military service (DOD
Directive 1332.14, January 28, 1982, Part 1, Section H). According to a 1992
report by the Government Accounting Office (GAO), nearly 17,000 men and women
were discharged under the category of homosexuality in the 1980s." [Psychology.UCDavis.edu,
accessed 5/16/10, parentheses original]

1993: Congress Responded To
President Clinton's Attempt To End Ban On Gays By Codifying "Long-Standing
Defense Department Policy Stating That Homosexuals Are Not Eligible For
Military Service." According
to the Center for Military Readiness: "In 1993 members of Congress gave
serious consideration to a proposal known as 'Don't Ask, Don't Tell,' which was
announced by President Clinton on July 19, 1993. The concept
suggested that homosexuals could serve in the military as long as they
didn't say they were homosexual... Instead of approving such
a convoluted and legally-questionable concept, Congress chose to codify Defense
Department regulations that were in place long before Bill Clinton took
office. The resulting law, identified as Section 654, Title 10,
continued the long-standing Defense Department policy stating that homosexuals
are not eligible for military service. Following extensive debate
in both Houses, the legislation passed with overwhelming, veto-proof
bipartisan majority votes. In writing this law, members wisely
chose statutory language almost identical to the 1981 Defense Department
Directives regarding homosexual conduct, which stated that
'homosexuality is incompatible with military service.' Those
regulations had already been challenged and upheld as constitutional by the
federal courts." [CMRLink.org, 8/22/08, italics original, emphasis
added]

SEN. SESSIONS: One
of the more serious issues that's been discussed quite a bit is the nominee's
handling of the united
states military while she was dean at
Harvard. She reversed harvard's policy, and she banned the military from the campus recruiting office. [...] Yet
Ms. Kagan barred them from the campus at Harvard. And on four different
occasions, this Congress passed laws to try to ensure that our military men and
women at a time of two wars was not discriminated against on college campuses
in this country. One of them was shortly before, a few months before, finally
we, it was written in a way they could not figure a way to get around it.
Shortly before she barred them from the campus. Subjecting Harvard to
loss of federal funds, which resulted in the military, when they finally
realized that she'd reversed this policy and found out they'd been stonewalled
and the front door of the university had been closed to them, they appealed to
the president of Harvard
University and he
reversed her position. It was not justified. It was wrong. It should not have
been done.

Military Recruiters Were Welcome On The Law School
Campus Throughout Then-Dean Kagan's Tenure

The Military Recruited On
The Harvard Law School
Campus, Including In Classrooms, Throughout Solicitor General Kagan's Tenure
There. According to the National Journal:

Kagan did not "ban"
military recruiters from the campus, as many critics have erroneously
said. Before, during, and after her deanship in 2003-2008, the Harvard Law School
Veterans Association provided military recruiters access to classrooms and
other campus space for recruiting events, with the law school's approval.

Kagan did for a time deny the
assistance of the law school's Office of Career Services to recruiters for the
military and other interested employers (if any) that discriminate against gay
people. That office helps employers schedule interviews and recruit students.
It is not a place where they can meet. Most private employers interview
students in nearby hotels.

The law school's policy did not
prevent the military from recruiting law students who were interested in
enlisting. Indeed, 18 went into the military during her tenure.

[...]

However inconvenient her
policy may have been for some, Kagan never sought to prevent military
recruiters from using classrooms or other campus space to meet students.

Military Recruiters Have
Accessed Students Through The Harvard
Law School
Veterans Association Since 1996. According to the New
York Times: "Because of the military's policy against openly gay
soldiers, the law school in 1979 barred military recruiters from using its
Office of Career Services, the central clearinghouse through which employers
from all over the world seek to recruit top-notch law students... Harvard
reached its own accommodation in 1996. While the school did not allow military
recruiters to use its main placement office, it did allow them on campus
through the Harvard Law School Veterans Association, a student group. The
recruiters met with students in the same classrooms, just under different
sponsorship." [New York
Times, 5/6/10]

While Joining Other Schools
In Recruitment Ban, Dean Kagan Still Allowed Military Recruiters Access To
Students Through Veterans' Group. The New York Times reported:
"Ms. Kagan did join more than half the faculty in January 2004 in signing
an amicus brief when a coalition of law schools challenged Solomon in an appeal
to the United States Court of Appeals for the Third Circuit, in Philadelphia. In November
2004, the appeals court ruled, 2 to 1, that Solomon was unconstitutional,
saying it required law schools 'to express a message that is incompatible with
their educational objectives.' The day after the ruling, Ms. Kagan - and
several other law school deans - barred military recruiters from their
campuses. In Harvard's case, the recruiters were barred only from the
main career office, while Ms. Kagan continued to allow them access to students
through the student veterans' group." [New York Times, 5/6/10,
emphasis added]

Former Harvard Law Dean:
Kagan Followed School Policy Already In Place. Former Harvard
Law Dean Robert C. Clark wrote in the Wall Street Journal:
"As dean, Ms. Kagan basically followed a strategy toward military
recruiting that was already in place. Here, some background may be helpful:
Since 1979, the law school has had a policy requiring all employers who wish to
use the assistance of the School's Office of Career Services (OCS) to schedule
interviews and recruit students to sign a statement that they do not
discriminate on the basis of race, gender, sexual orientation, and so on. For
years, the U.S.
military, because of its 'don't ask, don't tell' policy, was not able to sign
such a statement and so did not use OCS. It did, however, regularly recruit on
campus because it was invited to do so by an official student organization, the
Harvard Law School Veterans Association. The symbolic effect of this special
treatment of military recruiters was important, but the practical effect on
recruiting logistics was minimal." [Wall Street Journal, 5/11/10]

The Policy Did Not Hurt
Recruitment Of Harvard Students. As Media Matters for
America has exclusively learned: "The notion that military
recruitment was adversely affected by Kagan's actions is contradicted by
data Media Matters obtained from Harvard Law
School's public
information officer. The prohibition on Harvard Law's OCS working with military
recruiters existed during the spring 2005 semester, meaning that it could only
have affected the classes of 2005, 2006, and 2007. However, the number of
graduates from each of those classes who entered the military was equal to or
greater than the number who entered the military from any of Harvard's previous
five classes."

Number of Harvard Law
School graduates who
entered the military, by graduating class:

Dean Kagan Provided
Recruiters Access To Official Recruiting Office After Pentagon Directive And
Supreme Court Decision. According to the New York Times:
"the ban lasted only for the spring semester in 2005. The Pentagon told
the university over the summer that it would withhold 'all possible funds' if
the law school continued to bar recruiters from the main placement office. So,
after consulting with other university officials, Ms. Kagan said, she lifted
the ban. After doing so, she and 39 other Harvard law professors
signed an amicus brief urging the Supreme Court to invalidate Solomon. So did
the university. They all received a dose of reality in March 2006 when the
court ruled, 8 to 0, against them. 'A military recruiter's mere presence on
campus does not violate a law school's right to associate, regardless of how
repugnant the law school considers the recruiter's message,' Chief Justice John
G. Roberts Jr. wrote in the opinion. The ruling had little practical effect,
since most universities, including Harvard, were in compliance. Despite the
legal setback, Ms. Kagan continued to express her views, if less vocally."
[New York
Times, 5/6/10]

Dean Kagan Expressed Regret
At The Military's Continued Practice Of Discrimination. In her
letter to the Harvard
Law School
community regarding the lifting of the recruitment ban, then-Dean Kagan
wrote: "I have said before how much I regret making this exception
to our antidiscrimination policy. I believe the military's discriminatory
employment policy is deeply wrong - both unwise and unjust. And this wrong
tears at the fabric of our own community by denying an opportunity to some of
our students that other of our students have. The importance of
the military to our society - and the great service that members of the
military provide to all the rest of us - heightens, rather than excuses, this
inequity. The Law
School remains firmly
committed to the principle of equal opportunity for all persons, without regard
to sexual orientation. And I look forward to the time when all our students can
pursue any career path they desire, including the path of devoting their
professional lives to the defense of their country."
[Law.Harvard.edu, 9/20/05,
emphasis added]